In order to create a valid last will and testament (or revocable living trust) in Florida, the testator/testatrix (the people creating the will) must have testamentary capacity.  For most people this concept is pretty simple as the majority of us take care of our wills when we are completely competent and have not cognitive issues.  But as we age or go through/experience some type of mental/cognitive decline, it may be possible to lose the ability to create a last will and testament. This will answer some questions regarding testamentary capacity.

What is the level of capacity that is needed to create a last will and testament?

The person making the will must has sufficient capacity to comprehend :

  • the nature and extent of his or her property (i.e., what are the assets and their relative size);
  • his or her relationship to the persons who were, or should, be the natureal objects of his or her estate; and
  • a general understanding of the effects/process of the will.

Florida courts have said that the person making the will must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator/testatrix who has sufficient mental power to do these things is, within the meaning and intent of the statute of wills, a person of sound mind and memory, and is competent to dispose of his estate by will

Does this extend to a revocable living trust?

Probably, yes. With the above test, you must know what your assets are and the people you would probably want to leave those assets to. But the last part of things is that you understand the effects of your will. Practically speaking, creating a revocable living trust may be more complicated than creating a last will and testament, so it may be argued that the capacity to create a trust is a higher standard than that of creating a will. 

What other legal standards of capacity exist?

After testamentary capacity, there are generally three other areas of capacity in the estate planning/elder law arena:

What if you do not have capacity to create a last will and testament?

Many people get scared when their loved one is having health issues and may be at the end of their life. But if you die without a last will and testament, your assets to go your family under Florida laws of intestacy.

What if I am not sure if Mom/Dad has capacity to create a last will and testament?

An experienced attorney will be needed to help document the testator's capacity to see if he or she can make a last will and testament. Sometimes a doctor is used to write a letter as to capacity, for instance, if the attorney is not clear.

What if my loved one created a will or trust and did not have capacity?

Then an heir may need to contest the last will and testament or trust. 

Can our law firm help?

The experienced estate litigation attorneys at DeLoach, Hofstra and Cavonis, P.A., can help with your legal matters. Give our team a call at (727) 397-5571 today to get started.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney